Dept. F47

Date: 6/29/23

Case #22CHCV01266

PROTECTIVE ORDER

Motion/Ex Parte Application filed on 5/15/23.

MOVING PARTY: Defendant Los Angeles Unified School District

RESPONDING PARTY: Plaintiff Jane Doe

NOTICE: ok

RELIEF REQUESTED: An order: (1) releasing the employee and personnel records of Defendant Troy Betz, (2) within the scope of a proposed protective order, or alternatively, (3) an in camera review of the personnel records of Defendant Troy Betz.

RULING: The motion is denied without prejudice.

SUMMARY OF FACT & PROCEDURAL HISTORY

On 11/30/22, Plaintiff Jane Doe (Plaintiff), a former student at Arleta High School, filed this action for damages arising from childhood sexual assault against Defendants Los Angeles Unified School District (LAUSD) and Troy Betz (Betz).  The operative First Amended Complaint, filed on 1/19/23, contains causes of action for: (1) Sexual Battery/Abuse of a Minor (against Betz and Does 1-10), (2) Intentional Infliction of Emotional Distress (against Betz and Does 21-30), (3) Negligent Hiring, Supervision & Retention of an Unfit Employee (against LAUSD and Does 1-20), (4) Breach of Mandatory Duty: Failure to Report Suspected Child Abuse (against LAUSD and Does 1-20), (5) Negligent Failure to Warn, Train or Educate (against LAUSD ad Does 1-20), (6) Negligent Supervision of a Minor (against LAUSD and Does 1-20) and (7) Negligence (against Does 31-50).  On 2/16/23, LAUSD answered the First Amended Complaint.  On 4/3/23, default was entered against Betz.  Betz has since resigned from his employment at LAUSD.

On 5/15/23, in response to document demands served by Plaintiff (responses to which were due on 5/19/23 by extension), LAUSD filed an ex parte application seeking an order: “1) releasing the employee and personnel records of Defendant Troy Betz, 2) within the scope of a proposed attached protective order, or 3) in the alternative order an in camera review of the personnel records of Troy Betz; and 4) order the release of relevant student records within the scope of the attached proposed protective order.”  (See Ex Parte Application/Motion, p.2:6-9).  Plaintiff opposed the ex parte application.  On 5/19/23, Department F51 continued the ex parte application to 5/22/23 to be heard by Department F47 and ordered the due date for production of documents stayed pending the 5/22/23 hearing.  (See 5/19/23 Minute Order).  On 5/22/23, this Court ordered the matter to be heard as a noticed motion, deemed the ex parte application the moving papers and allowed the parties to serve and file new opposition/reply papers.  (See 5/22/23 Minute Order).  The hearing was scheduled for 6/29/23.  Id.  On 6/14/23, Plaintiff filed a new opposition and on 6/22/23, LAUSD filed a reply.

ANALYSIS

Neither LAUSD nor Plaintiff state exactly when the underlying document demands were served nor has a copy of the written discovery been provided to the Court.  However, LAUSD indicates that responses were due on 5/19/23, pursuant to extension, which was the same date the ex parte application was initially set for hearing.  (Carelli Decl. ¶2).  As such, the document demands had to have been served more 30 days before 5/19/23.

CCP 2031.060(a) provides: 

“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (emphasis added)

Waiting until 4 days before responses were due, by extension, does not satisfy the requirement to promptly move for a protective order.  Nor does LAUSD’s failure to promptly move for a protective order provide a valid reason to seek ex parte relief.  The declaration submitted in support of the motion does not set forth any testimony regarding irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.  See CRC 3.1202(c); (Carelli Decl.).  The fact that LAUSD delayed until 4 days before responses were due to file an application for relief and counsel for the parties agreed that an ex parte application would be scheduled on the day responses were due is not a valid basis for seeking ex parte relief.  (See Carelli Decl. ¶5).  

In the future, the parties should not use ex parte applications to seek relief for matters which should be presented by way of noticed motions.  

Even setting aside the foregoing issues, the application/motion fails.  

The application/motion does not cite CCP 2031.060 as the statutory basis for a protective order in response to document demands.  (See Application/Motion, generally).  It is not until the reply, that LAUSD indicates that it is relying on CCP 2031.060(b)(6) as the basis for relief.  (See Reply, p.3:22-26).  LAUSD has failed to make the requisite showing of “good cause” for the issuance of the requested protective order.  See CCP 2031.060(b).  Without providing specific examples of the document demands at issue or a copy of the underlying discovery requests, LAUSD’s counsel merely states that “[i]n preparation for potential disclosure of these documents, LAUSD determined the responsive records constituted personnel and student records.”  (Carelli Decl. ¶2).  The application/motion repeatedly refers to an “attached” proposed protective order.  (See Application/Motion p.2:7, p.5:23, p.5:27).  However, the proposed protective order was not submitted until 5/16/23, the day after the application/motion was filed.  

The application/motion focuses on the employee and personnel records of Betz and student records.  However, the proposed protective order goes beyond such records by including “information” and  “testimony from trials or depositions or affidavits not heretofore publicly disclosed.”  (See proposed Protective Order,  p.1:20,  ¶1 p.1:25-26).  As such, it appears that LAUSD is not merely seeking a protective order regarding the document demands mentioned in the application/motion.   

There seems to be no dispute that the information/documents sought in Plaintiff’s unidentified document demands are relevant and necessary to the prosecution of Plaintiff’s case as the application/motion indicates that “LAUSD is prepared to disclose all employee records to Plaintiff without redaction” and also seems to acknowledge the student records would be relevant and responsive to the document demands.  (See Application/Motion, p.2:20-26).  

However, LAUSD has improperly attempted to obtain a protective order that seems to cover all discovery, and possibly other information, in this case by way of an incomplete ex parte application/motion.

To the extent that the opposition is based on CCP 1002, the Court finds that the statute applies to settlement agreements, not discovery responses.  CCP 1002 falls within Chapter 3.5 “Confidential Settlement Agreements” and provides, in relevant part: 

“(a) Notwithstanding any other law, a provision within a settlement agreement that prevents the disclosure of factual information related to the action is prohibited in any civil action the factual foundation for which establishes a cause of action for civil damages for any of the following:

. . . 

(2) An act of childhood sexual assault, as defined in Section 340.1.  

. . .

(b) which provides: “[n]otwithstanding any other law, in a civil action described in paragraphs (1) to (4), inclusive, of subdivision (a), a court shall not enter, by stipulation or otherwise, an order that restricts the disclosure of information in a manner that conflicts with subdivision (a).” 

(emphasis added)

As such, to the extent employee personnel records and/or student records are responsive to the demands, the Court would find that a protective order requiring such records/information to remain confidential and to be used only for purposes of this litigation appropriate based on the privacy rights of the individual employees and/or students whose records might be disclosed.  Such an order would not be intended to override the statutory requirements set forth in CCP 1002, if this case were to ultimately end in settlement. 

However, as noted above, breadth of the proposed protective order is not adequately supported by the application/motion.      

CONCLUSION

Based on the foregoing, the motion is denied without prejudice.